Colorado's Courts are still out of control...

Some judges continue to hold themselves above the law - but they are not beyond accountability.

DID YOU KNOW that you have the right to vote "NO" on these unjust justices (and judges at all levels)?

It's true – judges - even Supreme Court justices - in Colorado ARE accountable to the people. Every two years, voters in Colorado have the opportunity to render their judgement on a portion of our appointed judiciary in "retention" elections ("should they stay, or should they go?" What makes a good judge?) YOU, the voter, get to decide - they NEED YOUR APPROVAL to be retained on the bench.

The "Mullarkey Majority" on the Colorado Supreme Court were guilty of Aiding and Abetting

The lawsuit, originally filed in May 2011 by a group predominantly composed of current and former elected officials (including both Democrats and Republicans, spearheaded by state legislator Andy Kerr) against the State of Colorado (“Kerr v. Hickenlooper”), sought to overturn the state constitutional amendment by targeting the amendment’s passage via the citizen initiative process – which the lawsuit claimed is an unconstitutional practice unduly restricting the “rights” of legislators and the legislative branch.

The lead attorney and “mastermind” behind the lawsuit is “superlawyer” Herbert L. Fenster - which, given that Fenster’s lawsuit was based on the most tenuous of legal grounds, led to the suit being known as “Fenster’s Folly” in many circles.

After the 10th Circuit Court of Appeals ruled in June 2016 that the legislator plaintiffs lacked standing to bring the case, other plaintiffs regrouped and filed a Fourth Amended Complaint in December 2016 attempting to salvage the remains of the case. They failed.

Today’s ruling by U.S. District Court Judge for Colorado Raymond P. Moore ruled that the remaining plaintiffs, including both individuals and government entities (“political subdivisions of the state” such as county and local governments, school district and special district boards, etc) lacked standing to bring suit and dismissed the case.

Plaintiffs allege that citizens have protectable interests in a Republican form of government and in their elected representatives discharging “inherently legislative” functions such as taxation and appropriation. Plaintiffs allege that TABOR has injured citizens by injuring their elected representatives’ responsibilities and authority.

The judge acerbically noted that the Fourth Amended Complaint (a.k.a. FAC) included multiple references to legislator plaintiffs who had been previously ruled to lack standing -

“the inclusion of allegations in the FAC with respect to how elected officials have been injured by TABOR may have simply been an oversight or a failure to press the “backspace” button enough times when plaintiffs re-drafted their Complaint because there is certainly no basis to find that the plaintiffs who were or are legislators have standing in light of the Tenth Circuit’s remand order.” [Order at 7]

Judge Moore continued by noting that

“[W]ith respect to the individual plaintiffs, plaintiffs make no effort to discuss, analyze, or even ruminate on how the elected officials, educators, and citizens have standing…
Article III standing requires, “at an irreducible minimum,” that a party show an actual or threatened injury as a result of defendant’s allegedly illegal conduct, the injury can be traced to the challenged action, and is likely to be redressed by a favorable decision. Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752 (1982). The Court should not have to wade into that analysis when plaintiffs have voluntarily decided to stay dry on the riverbank.” [Order at 8]

“This still leaves the first test: whether plaintiffs seek to raise another person’s legal rights. Plaintiffs’ response to this inquiry is again demonstrative. For once, plaintiffs do address it; albeit with two meager sentences. Which effectively amount to the conclusory statement that plaintiffs seek to assert their own rights, rather than the rights of others. If all arguments could be won simply by restating the test and inserting a “do not,” then the Court’s job might be much easier. But, alas, that is not how things work. …
In summary, plaintiffs have not attempted to meaningfully argue, and certainly not analyze, why the plaintiffs who are elected officials, educators, and/or citizens have either Article III standing or prudential standing. To repeat, it is plaintiffs burden to do so. Thus, their failure is determinative, and the Court finds that the plaintiffs identified in Section II.B. supra who are elected officials, educators, and/or citizens do not have Article III or prudential standing to pursue this case.” [Order at 11]

Judge Moore then addressed whether the “political subdivision” plaintiffs had standing to sue – based on whether they were ”seeking to enforce rights granted to them in the Enabling Act.” Once again, he found the plaintiff arguments wanting:

“As with much of the standing inquiry, therefore, the Court is left without meaningful argument from plaintiffs. This is particularly troubling given that it is plaintiffs’ burden to establish their standing. In the specific context of the current inquiry it is equally troubling because whether a federal statute confers rights on a party is not necessarily straightforward, especially here where plaintiffs reference numerous provisions of the Enabling Act. (See ECF No. 151 at ¶ 30.) In their response, though, plaintiffs do not even identify the rights that the Enabling Act allegedly confers upon them.
… one conclusory statement is the extent of plaintiffs’ analysis. As a result, and perhaps understandably, in reply, defendant only directs its arguments toward the political-subdivision plaintiffs’ alleged right to a Republican form of government. (See ECF No. 163 at 6-7.) Why plaintiffs should be able to proceed on the basis of one conclusory sentence is beyond the Court.” [Order at 17]

“What of plaintiffs’ main argument then—that TABOR violates the express terms of the Enabling Act requiring a Republican form of government? (See ECF No. 160 at 8.) Of course, plaintiffs provide no actual analysis of the provision(s) of the Enabling Act that expressly require such a form of government or why those provision(s) afford the political-subdivision plaintiffs aright to the same.” [Order at 19-20]

and concludes

“the language of the Enabling Act reflects that the State Constitution was formed for the people of Colorado. Not the State’s political subdivisions.” [Order at 20]

“As a result, the Court finds that the school-district plaintiffs do not have political subdivision standing to pursue this action because they are not seeking to enforce any rights granted to them under the Enabling Act.” See City of Hugo, 656 F.3d at 1260

Conclusion

For the reasons discussed herein, the Court finds that none of the named plaintiffs (be they political subdivisions, former or current elected officials, educators, citizens, or anything else) have standing to pursue this action. As a result, the Court GRANTS the motion to dismiss (ECF No. 156), and DISMISSES this action for lack of subject matter jurisdiction.

Given the unambiguous and overwhelming constitutional precedent against the case, Fenster’s Folly must be viewed for what it clearly is: a massive PR stunt that’s merely the opening salvo in part of a concerted attack on Colorado’s Constitution and the citizen initiative process in Colorado.

Six years and hundreds of thousands of taxpayer dollars later, CTBC has (yet again) been proven right.

Clear The Bench Coloradowill, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Clear The Bench Colorado Director Matt Arnold was invited to discuss the question of whether Colorado courts are political (short answer: of course, to some extent) in a panel discussion broadcast on The Aaron Harber Show. Other panelists were judicial reform activist Peter Coulter, Attorney Tom Harrison, and former Colorado Supreme Court Justice Rebecca Love Kourlis.

It is naive beyond credulity to assert that political considerations do not influence judicial decisions (if for no other reason than the indisputable fact that judges are human, and have opinions, biases, and predilections that may intrude upon their decision-making). It is also indisputable that courts have increasingly become involved in making policy, rather than applying law – addressing questions that have traditionally (and correctly, IMNSHO) been viewed as non-justiciable (violating the “political question” doctrine).

The “official” system of evaluating judicial performance also lacks transparency and serves to cover up (and perpetuate) existing politicization of the state’s third branch of government.

The worst element of the “”judicial evaluation” system in place is that a commission composed entirely of political appointees tells(er, “recommends”) Coloradans how to vote on judges – our third branch of government.

It is also a myth to assert that Colorado’s “merit selection and retention” system is free of political influence and special-interest spending or influence.

However, the greater and more pernicious element of politicization of our courts simply revolves around what cases are taken (or allowed to proceed); the increasing reach of litigation into every corner of society and nearly every interaction (commercial or personal) between a wide range of parties. When judges insert themselves (or allow the courts to be inserted) into areas that are more properly issues of governance, policy, social interactions or even etiquette, and matters of belief, rather than straightforward questions of law, the courts axiomatically become more political.

When judges impose personal policy preferences over the written text of the law, the rule of law suffers. In our system of justice, judges are like referees at a sporting event: at least, that’s the view of the “Rule of Law” school of jurisprudence. Like referees, judges are supposed to be impartial – taking no sides, applying the rules equally to both teams and all players. Judges must not “play favorites”, let alone be “players.”

“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.” – Abraham Lincoln

Clear The Bench Coloradowill, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance. However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions.

Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Clear The Bench Colorado Director Matt Arnold was invited to discuss the pros and cons of Colorado’s “Merit Selection” system of nominating and selecting judges in a panel discussion broadcast on The Aaron Harber Show. Other panelists were former Colorado Supreme Court Justice Gregory Hobbs, University of Colorado Law Professor Melissa Hart, and former Colorado Supreme Court Justice Rebecca Love Kourlis.

The shows discussing “Judicial Selection and the Legal System” aired on The Aaron Harber Show on Sunday, 2 April 2017.

The panel discussion contributed to addressing an important informational gap, as most Colorado citizens have very little knowledge about the process for selecting, nominating, and appointing judges to office under Colorado’s largely non-transparent selection system. The former judges (and wannabe judge) on the panel staunchly defended the current system (“Remain Calm! All is well!“) and largely opposed reforms to increase transparency and accountability, while CTBC Director Matt Arnold advocated for retaining the system but implementing reforms to increase visibility and transparency (which, CTBC firmly believes, would both improve the quality of judicial nominations and increase public confidence).

Colorado’s “Merit Selection” Judicial Nominating Process

A number of years ago, Colorado embarked upon an experiment in government that was touted as a great reform. Attempting to “take the judges out of politics” our state did away with direct, contested elections of judges in favor of the “merit selection and retention” process pioneered by the State of Missouri (thus, the “Missouri Plan”), under which judges and supreme court justices are nominated by commissions, appointed by the governor, and only subjected to checks and balances by the citizens of the state in periodic “retention” elections (posed as a simple yes/no question on the ballot).

In theory, the system looked like a good idea; after all, selecting judges on the basis of “merit” instead of “ability to win an election” – putting professional qualifications ahead of political ones – appeals to our common desire for fair play and “equal justice before the law” and removes some of the most direct and obvious temptations for corruption via “quid pro quo” campaign contributions.

Most importantly, the lack of transparency and public understanding of the process leads to a general lack of confidence in our judiciary in general, and undermines the right and ability of Colorado Citizens to hold our judicial branch officials accountable – leading to ignorant statements such as “why bother to vote out the bad ones? They’ll just replace ‘em with more of the same.”
(That attitude is reminiscent of someone clinging to an abusive domestic relationship – putting up with the beatings because it’s what they know.)
Step One: remove the source of the abuse. Step Two: make better choices for the future…

So how do Colorado’s Judicial Nominating Commissions try to make ‘better choices’ for replacing outgoing judges?

By the Numbers: How the Judicial Selection Process works

On announcement of the vacancy and solicitation for application, prospective nominees submit an extensive application packet (including a long questionnaire, writing sample, background information, resume of relevant professional experience, and references).

Commission members review the applications, and select from the total list (this year, 31 people applied for the impending vacancy) for interviews (a particular candidate will be interviewed if any commissioner expresses a strong desire to have them appear). Commissioners consider the current makeup of the court, and may advocate for a specific constituency – a particular area of legal expertise – such as water or business law, or possibly a regional or ethnic representation in pursuit of court ‘diversity’). Interviews are based on a common set of ‘core’ questions (for consistency of comparison & evaluation); each commissioner develops and uses their own evaluation criteria.

Following interviews, the commission deliberates/discusses the candidate, voicing comments or concerns to the group at large.

Following all of the interviews, the commission casts a ballot – three unranked votes per opening (for the Colorado Supreme Court or Court of Appeals – lower courts may only require 2-3 nominees). The top vote-getters become the finalists – with the caveat that any finalist MUST receive a majority of total Commission votes (i.e. 8 of 15), irrespective of how many are actually present. Multiple ballots may be (generally are) necessary. (Note that the current makeup of the Nominating Commission – 7 Democrats, 5 Republicans, 3 Unaffiliated – ensures that any finalists MUST receive at least one vote from multiple party affiliations).

The names of the three finalists are submitted for consideration by the governor, who has 15 days to make a selection from the list.

Systemic Flaws and Opportunities for Reform

The greatest flaw in the current process is an almost complete lack of transparency (until recently, the nominating commissions refused to even publish the names and backgrounds of the three “finalists” nominated for appointment by the governor).

Judicial Nominating Commission members are usually completely unknown (and hence unaccountable) to the public; appointment to the commissions is at the sole discretion of the governor, frequently selected from among political “friends” and contributors, leading to charges of cronyism.

“The procedures that determine how state judges are selected and placed on the bench, particularly those in the highest courts, are central to the ultimate quality of justice in our courts. Every American has a stake in the way state judges are chosen. (emphasis added) Some states that select their judges through a commission-based appointive system have been criticized for the absence of public input into the process, lack of transparency, secretiveness in their procedures, and the political cronyism that can occur when commissions and the governor operate in what is essentially a closed system.”

Greater transparency in the commission’s deliberations would also do much to restore confidence in the integrity of the process. At a minimum, publishing the commission votes on nominees, along with a representative sample of questions put to the candidates, would allow the public to verify that judicial merit (versus political litmus tests or group identity) was decisive in nominating judicial appointees.

Finally, some form of public review and/or legislative confirmation hearings should be considered. Under Colorado’s current system, the governor appoints nominating commission members, who make their “recommendations” to the governor, from which the governor selects one for office – a process completely lacking in checks & balances, and from which the legislative branch is completely excluded. Such concentration of power in the hands of a single individual is inherently corrupting – and should be balanced by including the other branch of government, with public review.

“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.” – Abraham Lincoln

Clear The Bench Coloradowill, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance. However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions.

Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

The Seventeenth Judicial District Nominating Commission has nominated three candidates for a district court judgeship created by the appointment of the Hon. Craig R. Welling to the Colorado Court of Appeals, effective Jan. 16, 2017. Nominees Sean Finn of Broomfield,

Cynthia Kowert of Brighton, and Roberto Ramirez of Thornton were selected by the commission on Jan. 31, 2017, at a meeting in Brighton.

Under the Colorado Constitution, the governor has 15 days from Feb. 1, 2017, within which to appoint one of the nominees as district court judge for the Seventeenth Judicial District (Adams and Broomfield counties).

Comments regarding any of the nominees may be sent via e-mail to the governor at gov_judicialappointments@state.co.us

The three finalists (from whom Governor John Hickenlooper will select one) are:

However, the lack of transparency and public understanding of the process leads to a general lack of confidence in our judiciary and undermines the right and ability of Colorado Citizens to hold our judicial branch officials accountable – leading to ignorant statements such as “why bother to vote out the bad ones? They’ll just replace ‘em with more of the same.” (That attitude reminds me of nothing so much as someone clinging to an abusive domestic relationship – putting up with the beatings because it’s what they know. Step One: remove the source of the abuse. Step Two: make better choices for the future…)

So, how does the Supreme Court Nominating Commission try to make ‘better choices’ for replacing outgoing justices?

On announcement of the vacancy and solicitation for application, prospective nominees submit an extensive application packet (including a long questionnaire, writing sample, background information, resume of relevant professional experience, and references).

Commission members review the applications, and select from the total list (this year, 31 people applied for the impending vacancy) for interviews (a particular candidate will be interviewed if any commissioner expresses a strong desire to have them appear). Commissioners consider the current makeup of the court, and may advocate for a specific constituency – a particular area of legal expertise – such as water or business law, or possibly a regional or ethnic representation in pursuit of court ‘diversity’). Interviews are based on a common set of ‘core’ questions (for consistency of comparison & evaluation); each commissioner develops and uses their own evaluation criteria.

Following interviews, the commission deliberates/discusses the candidate, voicing comments or concerns to the group at large.

Following all of the interviews, the commission casts a ballot – three unranked votes per opening (for the Colorado Supreme Court or Court of Appeals – lower courts may only require 2-3 nominees). The top vote-getters become the finalists – with the caveat that any finalist MUST receive a majority of total Commission votes (i.e. 8 of 15), irrespective of how many are actually present. Multiple ballots may be (generally are) necessary. (Note that the current makeup of the Nominating Commission – 7 Democrats, 5 Republicans, 3 Unaffiliated – ensures that any finalists MUST receive at least one vote from multiple party affiliations).

The names of the three finalists are submitted for consideration by the governor, who has 15 days to make a selection from the list.

ALL of our sources (from differing party backgrounds) have stressed that the Nomination Commission deliberations are non-partisan (which is not to say, as our sources admit, that the deliberations and considerations do not reflect ideology or judicial philosophy – which is, in our view, entirely appropriate).

Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our judges are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.

Clear The Bench Coloradowill, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

The State Commission on Judicial Performance has announced a series of public hearings to provide citizen input on Colorado’s Judicial Performance Evaluation system as a prelude to lobbying the legislature to renew the program’s governing statute (C.R.S. 13-5.5-101et. seq.), which sunsets in 2019. See more here. The Commission seeks input on these six questions:

Do you rely on the “official” Judicial Performance Evaluations when you vote for judges?
Why or why not?

Do the “official” Judicial Performance Evaluations collect the right information about judges?

Do the “official” Judicial Performance Evaluations evaluate and report the evaluations properly?

Does the quality and usefulness of the evaluation information meet your expectations?

What other attributes of judges should we be gathering feedback on?

What suggestions do you have to improve the system?

Each meeting will last approximately two hours, depending on attendance and be based on the following agenda: I) Introductions and Meeting Purpose II) General Rules III) Current Program Overview IV) Public input If you cannot attend one of these meetings in person you can submit comments regarding the program via the COJPE “Citizens Feedback” link, or fill out an online survey: Citizens JPE Program Feedback Survey 2016 Hearings are scheduled for the following dates and locations:

Clear The Bench Colorado encourages citizen participation in these meetings, which represent at least an attempt to solicit substantive feedback, constructive criticism and suggestions for improvement of the judicial evaluation process. An increase in transparency and accountability, including more substantive information on actual judicial performance versus the current “survey says” popularity contest model, could improve our state’s judicial performance review process and provide real information of use to voters in distinguishing between judges seeking retention in office.

A critically important and much-needed improvement, in CTBC’s view, would be to remove the retain/not retain “recommendations” from the “official” review process. In no other area do political appointees

(all “performance review” commissioners are appointed by the governor, attorney general, state legislators and the Chief Justice of the Colorado Supreme Court – the latter certainly seeming to have a conflict of interest) tell Coloradans how to vote. The “evaluation” commissions should focus on evaluating (and rating) performance, rather than electioneering to promote votes.

We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution. — Abraham Lincoln

As Coloradans cast their ballots with only two weeks to go before “Election Day” (an increasingly meaningless term under Colorado’s all-mail-ballot election system), despite being bombarded with political ads and mailers, MOST voters have little to no information on up to a third of the people asking for their vote: thejudges - our state’s third Branch of government. Unfortunately, the vast majority of voters won’t be getting any better information before receiving or casting their ballots – although “experts agree” that “more information to voters is what’s needed.”

“Only one third of Colorado voters feel they are sufficiently informed to decide which judges should be retained,” according to a 2014 survey commissioned by the state government. “Further, only one-quarter of Colorado voters feel that most of the electorate has enough information.” (Quoted from Colorado judges win elections despite bad reviews“)

Unfortunately, the official, government-sanctioned incumbent-protection “performance reviews” produced by the state’s Commissions on Judicial Performance (published and disseminated, at significant taxpayer expense, in the “Blue Book”) fail to provide much (if any) substance behind the published “recommendations” (almost uniformly in favor of “retaining” judicial incumbents in office).

The Blue Book “reviews” are thus little more than (taxpayer-funded) political ads for incumbents.

A recent Denver 9News (NBC) story, “Colorado judges win elections despite bad reviews” converted the “official” performance review survey results into letter grades for each of the 108 judges appearing on the 2016 ballot. Amazingly, just like Lake Woebegone, allof the judges were graded “above average” (letter grades ranging from a high of “A-” to a low of “B-” with the vast majority receiving a “B+” grade).

When everyjudge appearing on the ballot is graded “above average” how can voters distinguish between “the good, the bad, and the ugly?”

The Commissions on Judicial Performance (groups of political appointees charged with evaluating and reporting on the job performance of judicial incumbents) routinely fail to actually evaluate judicial job performance or provide adequate information sufficient for voters to base a decision. Summarizing an incumbent’s resume and tabulating the results of surveys sent out to a select group of lawyers and other judges fails to answer the question posed to voters, “do they deserve another term – and why?”

There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters.
If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do. Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations. Some commentators and observers have denigrated the narratives as a “rubber stamp” exercise for retaining judges.

In any event, why do we have political appointees (commissioners are appointed by the governor, attorney general, state legislators and the Chief Justice of the Colorado Supreme Court – the latter certainly seeming to have a conflict of interest) telling Coloradans how to vote?

Colorado voters deserve better information on these unelected officials, who (usually with little notice) exert enormous influence over their lives. For a 4th straight election cycle, Clear The Bench Colorado researched, reviewed and evaluated the actual job performance of the appellate court (statewide) judges appearing on the 2016 ballot (1 Supreme Court justice, 10 Court of Appeals judges), collected inputs on district and county judges from around the state, and published a substantive analysis of judicial performance in an easy-to-read scorecard format.

Our courts rule on important issues that seriously impact all Colorado citizens, including:

Clear The Bench Coloradowill, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Perhaps because school choice opponents are losing the battle in the courts of public opinion, the fights have increasingly shifted to courts of law, where outcomes are time-consuming, expensive, and uncertain; and all too dependent on the whims of presiding judges.

Litigants on both sides of the school choice battle attempt to increase the odds of success by venue-shopping, bringing lawsuits in jurisdictions deemed most favorable to their position; but ultimately, should such policy decisions be in the hands of judges at all?

The Nevada Supreme Court recently heard oral arguments in twin challenges to that state’s education savings account (ESA) program – among the first major legal challenges to the ESA concept (as opposed to the more widespread voucher program approach). Similar to the challenge to Colorado’s Douglas County Choice Scholarship program, opponents object to the use of ESA (or voucher) funds to pay tuition at schools with religious affiliation (like Colorado, the Nevada state constitution has a Blaine Amendment barring use of state funds for “sectarian” schools). However, like Colorado, proponents argue that since the choice of which schools to attend (and hence, where ESA or voucher funds are spent) lies with the parents, the state is not “propping up religious institutions in violation of the state constitution.”

National Impact:

Each of these cases, alone, could have tremendous impact on the fate of school choice programs nationwide. The fact that all of them are likely to be decided in the next year (or so; notoriously, the wheels of justice grind slowly) trebles the potential impact, and could prove decisive for the fate of school choice programs nationwide. Advocates – and opponents – of school choice have a protracted, drawn-out and resource-intensive (legal) battle ahead – with enormous stakes. After all… it’s for the children.

Yet ultimately, the decisions about how education is funded, and how schools are run, are being made in neither of these arenas, but in the courts.

When an elected majority on the Douglas County School Board decided to create a school choice scholarship program in 2011, it was instantly challenged in court by diehard opponents of school choice, who sought to stop the program before it could educate any child outside the public school system. The challenge revolved around whether an elected school district board has “the broad authority to contract with private schools for the provision of a public education to public school students” [per Education Policy Center] under the guise of opposition to “public funding” of education options outside the “public school” system. One might think that making decisions about the provision of public education is precisely why county residents elect a school board, but apparently (at least in the view of the plaintiffs, and the courts in Colorado) those decisions are better made by appointed judges.

The Douglas County case also touches upon important constitutional issues such a separation of powers, establishment of religion, and collection & allocation of tax dollars, but ultimately comes down to a very basic and fundamental issue: who decides how to educate Colorado’s children?

Unfortunately, all too often the answer from the courts has been: we judges do.

The odyssey of the Douglas County effort to create more school choice options is illustrative.

Beginning in 2011, when anti-choice activists brought the legal challenge in Denver District Court, Judge Michael Martinez blocked implementation of the program just as the school year was starting – leaving many parents scrambling to find alternative education choices for their children enrolled in (and relying on) the choice scholarship program. Judge Martinez later made the original temporary injunction permanent, effectively sidelining the program through the appeals process.

It wasn’t until the end of the year (following submission of extensive legal briefs by both sides) that the Colorado Supreme Court heard oral argument in the case – which had gained national attention as the “ground zero” in the fight for school choice across the country.

Ultimately, it would be another half a year (29 June 2015) before the Colorado Supreme Court issued its decision: an unusual 3-3-1 split plurality decision reversing the Court of Appeals: three of the Colorado Supreme Court justices (Chief Justice Rice, Justice Hobbs and Justice Hood) held that the CSP violated the Colorado Constitution; one (Justice Marquez) held that the CSP violated the School Finance Act on statutory grounds, and joined in the judgment. Three justices (Justice Eid, joined by Justice Boatright and Justice Coats) agreed that the plaintiffs lacked standing on statutory grounds, and disagreed that the CSP was in violation of the Constitution.

Even that decision remains pending appeal before the U.S. Supreme Court, challenging whether the Colorado constitutional provisions (known as “Blaine Amendments”) on which the decision was based are themselves unconstitutional under the First Amendment.

Meanwhile, while the appeal of the original program – which included sectarian schools – was pending, the Douglas County School Board attempted to address those concerns with a new iteration of a school choice program excluding religious schools from participating (which, ironically, drew challenges from both sides of the spectrum: one challenging discrimination against religious schools, another one challenging the existence of any school choice scholarship program whatsoever, even if it did exclude religious schools – the pretense for the original challenge). Coming full circle, the latter challenge ended up before the same judge (Denver District Court Michael Martinez) who again applied the permanent injunction to the new, non-religious school choice program – effectively killing any attempt to expand school choice in Colorado pending SCOTUS taking on (and ultimately deciding) the appeal of the Colorado Supreme Court decision.

The lesson for advocates of school choice?

Challenging entrenched education establishment special interests is a protracted, drawn-out and resource-intensive battle – with enormous stakes. After all… it’s for the children.

Denver District Court Chief Judge Michael Martinez ruled earlier this month to apply the permanent injunction in effect against the previous program against a new school choice program (the Choice Grant Pilot Program) approved in March by the school board (on a 4-3 vote). The new program was designed specifically to address the rationale used by the Colorado Supreme Court last year to ban the previous school choice program due to inclusion of religious (or “sectarian”) schools among those a parent could select.

The lawsuit leading to the permanent injunction took a somewhat convoluted path back to the courtroom of Judge Martinez. The originally (randomly) assigned judge, Catherine Lemon, was recused “at the outset;” other judges rotated out; and the plaintiffs filed a motion requesting Judge Martinez, who been elevated to the Denver District Chief Judge, to assign the case to himself – which he did, on 24 June 2016 (exactly a month after the lawsuit was filed, and ten days after defendants filed their responses). To call this unusual …would be an understatement.

Judge Martinez applied and enforced the original injunction against the Choice Scholarship Program (CSP) to the new School Choice Grant Program (SCGP) based on the argument that the new program “is in actuality a revision of the CSP:”

Plaintiffs assert, and Defendants do not contest, that there are only a few differences between the two programs: in the SCGP, vouchers are called grants instead of scholarships, religious schools cannot be private school partners, the fictional Choice Scholarship School is eliminated, and the percentage of “per pupil revenue” (“PPR”) which will be given out as a voucher is increased. Other than these few changes, the essence of the CSP substantially remains intact” (Orderat 3)

Consequently, Judge Martinez held that because there is “no fundamental difference” between the programs, that the original injunction against the CSP could be applied to the SCGP. Martinez acknowledged that “the Colorado Supreme Court focused its opinion on the issue of religious schools receiving public funding under article IX, section 7 of the Colorado Constitution and did not reach the remaining constitutional issues” but nonetheless applied the ruling to the new program lacking any such element because “the ultimate opinion of the Colorado Supreme Court was without limitation.” (Order at 4)

Therefore – despite the fact that the Colorado Supreme Court ruling (on an unusual 3-3-1 plurality split) striking down the original Choice Scholarship program did so entirely on the basis of alleging that the program ran afoul of the constitutional provision (described as a “Blaine Amendment”) prohibiting use of public funds “to help support or sustain any school… controlled by any church or sectarian denomination whatsoever” (Article IX, Section 7), and the complete absence of such elements in the SCGP – Judge Martinez ordered the CSP permanent injunction into effect against the SCGP and enjoining the Douglas County School Board from implementing the School Choice Grant Program.

So, school choice in Colorado (and nationwide) suffers a setback – at the hands of the same judge who dealt another setback five years ago. It remains to be seen whether the setback is temporary, or more enduring; the U.S. Supreme Court may yet take up (and if it does, likely reverse) the appeal of the Colorado Supreme Court ruling striking down the original Choice Scholarship Program. In any event, one thing is certain:
more court battles over school choice willbe fought in both state and federal courts.

We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.— Abraham Lincoln

As Coloradans enjoy the last month this 2016 election year before being bombarded with political ads and mailers, MOST voters have little to no information on up to a third of the people asking for their vote: our state’s 3rd Branch of government, the judges.

Unfortunately, the vast majority of voters won’t be getting any better information before receiving their ballots – although “experts agree” that “more information to voters is what’s needed.”

“Only one third of Colorado voters feel they are sufficiently informed to decide which judges should be retained,” according to a 2014 survey commissioned by the state government. “Further, only one-quarter of Colorado voters feel that most of the electorate has enough information.” (Quoted from Colorado judges win elections despite bad reviews“)

Unfortunately, the official, government-sanctioned incumbent-protection “performance reviews” produced by the state’s Commissions on Judicial Performance (published and disseminated, at significant taxpayer expense, in the “Blue Book”) fail to provide much (if any) substance behind the published “recommendations” (almost uniformly in favor of “retaining” judicial incumbents in office).
The Blue Book “reviews” are thus little more than (taxpayer-funded) political ads for incumbents.

A recent Denver 9News (NBC) story, “Colorado judges win elections despite bad reviews” converted the “official” performance review survey results into letter grades for each of the 108 judges appearing on the 2016 ballot. Amazingly, just like Lake Woebegone, allof the judges were graded “above average” (letter grades ranging from a high of “A-” to a low of “B-” with the vast majority receiving a “B+” grade).

When everyjudge appearing on the ballot is graded “above average” how can voters distinguish between “the good, the bad, and the ugly?”

The Commissions on Judicial Performance (groups of political appointees charged with evaluating and reporting on the job performance of judicial incumbents) routinely fail to actually evaluate judicial job performance or provide adequate information sufficient for voters to base a decision. Summarizing an incumbent’s resume and tabulating the results of surveys sent out to a select group of lawyers and other judges fails to answer the question posed to voters, “do they deserve another term – and why?”

There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters.
If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do. Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations. Some commentators and observers have denigrated the narratives as a “rubber stamp” exercise for retaining judges.

In any event, why do we have political appointees (commissioners are appointed by the governor, attorney general, state legislators and the Chief Justice of the Colorado Supreme Court – the latter certainly seeming to have a conflict of interest) telling Coloradans how to vote?

Colorado voters deserve better information on these unelected officials, who (usually with little notice) exert enormous influence over their lives. For a 4th straight election cycle, Clear The Bench Colorado is researching and evaluating the performance of the appellate court (statewide) judges appearing on the 2016 ballot (1 Supreme Court justice, 10 Court of Appeals judges), collected inputs on district and county judges from around the state, and will publish this information in an easy-to-read “scorecard” format as a resource for Colorado voters.

Our courts rule on important issues that seriously impact all Colorado citizens, including: